Referring to the freedom movement during which people were jailed for protesting against the British rule, the Supreme Court on Tuesday lamented that arbitrary arrests continued to be a pervasive phenomenon and said discretionary power of courts to grant anticipatory bail cannot be curtailed and the protection could continue till the end of the trial.

Adjudicating on the issue of extent of protection granted to an accused under anticipatory bail provision, a five-judge Constitution bench of Justices Arun Mishra, Indira Banerjee, Vineet Saran, M R Shah, and S Ravindra Bhat held in a unanimous verdict that protection from arrest should not ordinarily be limited to a fixed period, but could continue till end of trial.

Justice Bhat said:

“The spectre of arbitrary and heavy-handed arrests, too often to harass and humiliate citizens, and often times at the interest of powerful individuals (and not to further any meaningful investigation into offenses) led to the enactment of Section 438. Despite several Law commission reports and recommendations of several committees and commissions, arbitrary and groundless arrests continue as a pervasive phenomenon. Parliament has not thought it appropriate to curtail the power or discretion of the courts, in granting pre-arrest or anticipatory bail, especially regarding the duration."

“Therefore, it would not be in the larger interest of society if the court, by judicial interpretation, limits the exercise of that power... the danger of such an exercise would be that infractions, little by little, the discretion, advisedly kept wide, would shrink to a very narrow and unrecognizably tiny portion, thus frustrating the objective behind the provision, which has stood the test of time, these 46 years,” he said referring to the Jallianwala Bagh massacre and several other incidents in which protesting people were brutally suppressed and jailed for long.

The provision of anticipatory bail under Section 438 was introduced when CrPC was amended in 1973.

The bench said the life of anticipatory bail does not end generally at the time and stage when the accused is summoned by the court, or after framing of charges, but can also continue till the end of the trial.

“However, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so,” the bench said.

It held that anticipatory bail application could be moved by a person even before filing of FIR and held that the court while granting anticipatory bail, should examine seriousness and gravity of the offense to impose any condition on the petitioner, if necessary.

Overturning the apex court’s earlier ruling that no restrictive conditions at all can be imposed, the bench said, “The need to impose other restrictive conditions would have to be judged on a case by case basis and depending upon the materials produced by the state or investigating agency.

Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.”

The Court said:

“The reason for the enactment of Section 438 in the Code was the parliamentary acceptance of the crucial underpinning of personal liberty in a free and democratic country. Parliament wished to foster respect for personal liberty and accord primacy to a fundamental tenet of criminal jurisprudence, that everyone is presumed to be innocent till he or she is found guilty. Life and liberty are the cherished attributes of every individual. The urge for freedom is natural to each human being. Section 438 is a procedural provision concerned with the personal liberty of each individual, who is entitled to the benefit of the presumption of innocence. As denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when not imposed by the legislature."

Justice Bhat said, “In conclusion, it would be useful to remind oneself that the rights which the citizens cherish deeply are fundamental- it is not the restrictions that are fundamental”.

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